Find a Lawyer

Criminal Reference No. 6 of 185, decided on 24th February, 1986.

‑‑‑Ss.5, 14 & 15‑‑Penal Code (XLV of 1860) Ss.307, 147, 148 & 149‑ Appreciation of evidence‑‑Testimony of close relations cannot be rejected outright simply by virtue of relationship‑‑Such evidence loses its value when found otherwise incredible and worthless‑‑Relationship by itself not a disqualification of a witness‑‑Testimony of a related witness is tested on equal footing with testimony of any other witness‑‑Evidence is believed or disbelived by virtue of its own intrinsic value‑ Nevertheless, Courts as a safeguard and precaution, .insist cry, independent corroboration of such evidence.

‑‑‑Ss 5, 14 & 15‑‑Penal Code (XLV of 1860), Ss 307, 147, 148 & 149‑‑Occurrence 'taking place over possession of land‑‑Presence of eye witnesses and accused on scene not denied even by defence‑‑Immediate cause of quarrel and its initial starting between accused and deceased distinctly clear‑‑Injured witnesses and other accused pining fight at immediate subsequent moment‑‑Accused inflicting spear blow from sharp edged side on head of deceased in heat of passion during altercation with latter‑‑Independent liability of accused causing fatal blow to deceased proved beyond reasonable doubt‑‑Relevant evidence of eye witnesses finding support from independent testimony of prosecution witnesses and medical evidence‑‑Accused taking plea of defence of property but appreciation of evidence on question of possession of disputed land showing that he was not in possession of any part of land where occurrence took place‑‑Plea of accused relating to self‑defence of person also devoid of force because it did not transpire from evidence that he was under an immediate apprehension of danger to his life and thereby was justified to take initiative in manner of causing fatal blow to deceased‑‑Accused, held, liable for offence of causing culpable homicide.

‑‑‑Ss. 5, 14 & 15‑‑Penal Code (XLV of 1860), Ss. 307, 147, 148, 149 & 304. Part II‑‑Sentence‑‑Attending circumstances showing that fatal injury on deceased was not caused by accused in consequence of premeditation and intention to kill but in heat of passion during exchange of hot' words‑‑Accused also not repeating blow and declining to take advantage of situation when deceased fell down after receiving first blow‑‑Yet in view of weapon of offence used and seat of injury on vital part of body, accused could reasonably be believed to have knowledge that his act was likely to cause death of decease‑‑Total facts of case taking out his case from mischief of S. 5, Islamic Penal Laws Act, 1974 and bringing it under S. 304 Part II. Penal Code. 1860‑‑Accused held, guilty of offence of culpable homicide not amounting to murder and sentenced under S.304, Part II, Penal Code, to seven years' rigorous imprisonment in circumstances,

‑‑‑S. 382‑B‑‑Penal Code (XLV of 1860), Ss. 147. 148, 149, 307 & 304 Part II‑‑Accused eighty years old‑‑Benefit of S.382‑B, Criminal Procedure Code, given to him in view of his old age.

‑‑‑Ss. 5, 14 & 15‑‑Penal Code (XLV of 1860) Ss. 307, 143, 148 a 149‑‑Appreciation‑of evidence‑‑Eye‑witnesses denying their knowledge of injuries on accused persons and as such suppressing material facts which in their opinion lent support to defence‑‑Suppression of such material particulars, held, not enough to reject their total testimony‑‑Only that part of, testimony would be accepted which found corroboration from independent source.

‑‑‑Ss. 307, 147, 148 & 149‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss. 5, 14 & 15‑‑Unlawful assembly‑ Allegation of forming an unlawful assembly to accomplish common object of accused not supported by any independent source of evidence‑ ‑Other accused persons arriving on scene only in consequence of altercation between deceased and accused‑‑Incident not result of premeditation and pre concert of other accused persons and they were not partisan to original incident‑‑Allegation of forming unlawful assembly ,not corroborated by independent source‑‑Case of other accused being distinguishable from case of main accused other accused held could not be made responsible for death of deceased.

‑‑‑Ss. 147, 148, 149 & 307‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 5‑‑Unlawful assembly‑‑Evidence showing that parties were involved in a free fight after falling of deceased on attack by main accused and inflicted injuries to each other and in that situation it was not possible to pinpoint specific injury to any particular accused‑‑Allegation of offence of unlawful assembly, held. not proved in circumstances.

‑‑‑S. 300‑‑Self‑defence of property‑‑Stage of self‑defence of property arises only when it was satisfied that incident occurred in process of defence of property of accused.

‑‑‑S.5‑‑Penal Code (XLV of 1860), Ss. 307, 147, 148 & 149‑‑Except main accused, co‑accused joining quarrel simultaneously with eye witnesses as members from both parties attracted by abuses exchanged between accused and deceased‑‑In that state of mind both parties entering into a free fight and inflicting injuries on each other‑‑Offences attributed to co‑accused not found proved beyond reasonable doubt‑‑ CO‑accused acquitted.

Nisar Mirza Addl. A.‑G. for the State.

Kh. Ali Muhammad for the Complainant.

Ch. Muhammad Taj for the Accused.

Rehmat Khan and others, eleven accused persons are charged with offence of forming unlawful assembly, trespassing. infliction of injuries to prosecution witnesses and causing death of Noor Elahi, deceased. Niamat Bibi, a co‑accused.' died during the trial and Muhammad Malik was dropped from trial under section 169, Cr. P.C. for want of evidence. Thus, nine accused persons are facing the‑ liability of aforesaid offences. In view of difference of opinion. the trial Court has made this reference for decision by this Court.

2. The prosecution's case is that on 24th September, 1980 at 6 a.m., Fazal Hussain complainant, accompanied by Noor Elahi, his father, went for ploughing land, the place of incident, where Rehmat Khan accused was already ploughing said land. Noor Elahi stopped him from doing so. Then ensued, altercation between Rehmat Khan and Noor Elahi. It developed into a quarrel. Other accused, namely, Sawar Khan, Muhammad Boots, Sabir Hussain, Muhammad Siddique, Muhammad Azam, Farzand Ali, Noor Hussain, Ashiq Hussain and Mst. Niamat Bibi, armed with deadly weapons including hatchets and sticks, opened attack on Noor Elahi and Fazal Hussain. Rehmat Khan inflicted a hatchet blow on the head of Noor Elahi. He fell down on which Sabir Hussain and Muhammad Azam caused further injuries to him. Two days thereafter, he expired in the hospital. Fazal Hussain complainant, received 10 injuries on various parts of his body; Alam Din received 2 injuries on his shoulder and back of head; Karam Elahi received 7 injuries; Mst. Fatimah Bibi, widow of Noor Elahi, received 4 injuries, at the hands of various accused persons. Among the accused persons, Noor Hussain received 4 injuries, Mst. Niamat Bibi got 5 injuries, Ashiq Hussain received one injury at his palm and Rehmat Khan received two injuries one on his right elbow and other on the thumb of right hand. Muhammad Boots received injury on his right knee. Sawar Khan was injured at left shoulder and left thigh. Except the thumb injury of Rehamt Khan all injuries were simple. The site of incident, Survey No. 1938‑min, is Shamilat‑e‑Deh. The land in question was the subject of dispute between the parties as Noor Elahi alongwith Muhammad Alam, Karam Elahi and Noor Alam, his brothers, claimed its possession by virtue of exclusive title whereas Rehmat Khan and others, collaterals of Noor Elahi, alleged their share in the land. On the day of incident, the immediate cause, as mentioned earlier, was the ploughing of land by Rehmat Khan with collaboration and abetment of co‑accused persons. According to prosecution, the accused party conspired to occupy the land forcibly and in furtherance of its objective, killed Noor Elahi and injured the eye‑witnesses. The prosecution produced Fazal Hussain complainant son. Mst. Fatimah Bibi, widow, Muhammad Alam, Karam Elahi and Noor Alam, brothers of the deceased, eye‑witnesses. They, except Noor Alam are injured witnesses. Other witnesses produced by prosecution are Muhammad Ibrahim Muhammad Sadiq, Muhammad Hussain. Bahadur Ali, Abdul Karim. Sardar Khan Constable. Inayat Ali Constable, Muhammad Akram Constable, Dr. Muhammad Qurban. Dr. Manzoor Ahmad, Munshi Malik Dad Patwari and Muhammad Afzal. S.H.O. Bhimber.

3. The learned Sessions Judge, a member of trial Court, arrived at the conclusion that prosecution failed to prove its case beyond reasonable doubt, as such he acquitted all accused. It was held that the prosecution witnesses despite closely inter se related and interested were inconsistent on material particulars of the incident. They deliberately suppressed the injuries of accused persons and made improvements in their testimony. Fazal Hussain, complainant Who happened to be armed with a revolver, deliberately suppressed its possession and firing in the incident. He ultimately admitted the recovery of revolver from his possession and subsequently its acquisition on Spurdnama, by order of Court. He was found prevaricative on this account. The learned Sessions Judge was not satisfied even with the evidence of possession of deceased over the land in dispute. The learned District Qazi recorded his disagreement with the learned Sessions Judge and felt advised to record conviction of all accused persons. In his judgment, the learned District Qazi extensively quoted Hadith and precedents in support of his finding. Rehmat Khan was attributed the fatal blow to deceased, Sabir Hussain and Muhammad Azam, ascribed rest of the injuries on deceased from blunt side of hatchets, were held guilty of offence of murder punishable under section 5 of the Islamic Penal Laws Act and were awarded sentence of Qaisas. Noor Hussain, Ashiq Hussain, Sawar Khan, Muhammad Boots and Muhammad Siddique were held guilty of their individual acts as well as of vicarious liability and were awarded sentence of rigorous imprisonment for ten years each under sections 14 and 15 of the Islamic Penal Laws Act read with sections 147, 1.48, 149 and 307 of the Penal Code. In addition to that, they were awarded sentence of Hakoomat‑e‑Adal in the sum of Rs.10, 000 each. It was ordered that on recovery of the amount, it shall be paid to the injured persons. On failure to pay the amount the accused were to undergo further one year's imprisonment. Muhammad Siddique, aged 16/17 years, being a juvenile offender and Mst. Niamat Bibi being an old woman, on compassionate grounds, were awarded lesser sentence in the sum of Rs.500 each. On failure to pay the amount, they were to undergo imprisonment for a period of three months each.

4. The prosecution and defence are in agreement that immediate cause of the incident was the dispute over possession of land comprising Survey No.1938‑min., situated in village Kas Chanatar, Police Station Bhimber. The parties are descendants of a common ancestor. The land in dispute is Shamilat‑e‑Deh. In this view of the matter Rahmat Khan and other accused, who are also co‑owners in the village and collaterals of Noor Elahi deceased and his brothers, claimed their share in the land in dispute. According to the prosecution, the estate left by common ancestor alongwith the respective shares of the parties in Shamilat‑e‑Deh land, was partitioned much earlier and thereby each co‑sharer was put in exclusive possession of his share of land. By virtue of partition the land in question fell to the share of Channan Din, father of Noor Elahi, on whose death, by private partition the land where the incident occurred, fell to the share of Noor Elahi. It it clear from the record that the land in question was reclaimed on diversion of watercourse of the Nullah. The record of rights consisting of Jamabandi for the year 2003‑2004 Bikrami, Exh.P.D, shows the nature of land as Shamilat‑e‑Deh Channan Din, co‑sharer alone is shown in possession. Copy of Khasra Girdawari for the year 1979‑80, Exh P.U shows possession of the land in the name of Muhammad Alam, Noor Alam, Noor Elahi and Karam Elah. co‑sharers, in equal share. Likewise, the total area of the land entered in the record of rights is 10 Kanals out of which 4 Kanals is entered as Maira Doem and 6 Kanals as Banjar Qadeem. On death of Channan Din, the land in question devolved on Muhammad Alam, Noor Alam, Noor Elahi, Karam Elahi, his sons, and Mst. Noor Begum, his daughter, vide Mutation No.558. The documentary evidence finds support from oral evidence of prosecution. The oral evidence makes it explicit that Noor Elahi deceased alone was in possession of the land in question The counter‑claim of defence. as reflected from the tendency of cross -examination, is that part of the land was in possession of Rehmat Khan and Muhammad Azam, accused persons. It was also suggested by defence that land in dispute was in joint possession of the parties. The accused pleaded not guilty but at the same time felt advised not to make express claim to possession of the land, the place of occurrence, in their statements under sections 242 and 342, Cr. P. C. and confined their defence to pleading not guilty It is only the trend of cross‑examination which reveals counter‑claim of defence to the land in question. Therefore, the material brought on record to determine the possession of land in question consists of documentary and oral testimony of prosecution. Fazal Hussain, P.W.1 was cross‑examined extensively on all material points of the case of prosecution, including the title the possession of parties in the land in dispute, It was suggested to him that the land in question was in joint ownership and possession, but the entry of exclusive possession of Channan Din in the record‑of‑rights was manoeuvred by Bahadur Ali, P.W. who happened to be brother‑in‑law of Noor Elahi deceased. The suggestion was denied expressly. Bahadur Ali also appeared as witness. He was a Patwari. The defence failed to question him his partisan role in alleged manoeuvring of questioned entries in the record‑of‑rights. The omission on the part of defence to ask Bahadur Ali any question relating to alleged manoeuvring of entries in the record‑of‑rights, favourable to Channan Din and subsequently to Noor Elahi and others, indicates a weak belief of defence in its alleged claim. Be as it may, the fact remains that entries recorded to the record‑of‑rights showing possession of land, the place of incident, of Noor Elahi and his brothers, go unrebutted. The other relevant evidence on the point consists of the testimony of Munshi Malik Dad, Patwari and Muhammad Afzal, S.H.O. Bhimber. Munshi Malik Dad prepared the site plan, Exh . P.S. , and key‑notes, Exh .P.S./1. He also issued copies of Jamabandi, Exh.P.D. and Khasra Girdawari, Exh.P.U. The period of his posting in the village was not disclosed in his evidence as it was, perhaps, not asked from him. Therefore, it is not clear as to whether he made any Girdawari of the land in question. However, according to his evidence, the total area of Survey No. 1938 was 159 Kanals 2 Marlas. About 100 Kanals out of its was in the shape of Nullah‑bed and was commonly used by the villagers. Rest of the land was divided into various fields and was in possession of different owners in the village. In answer to a question in cross‑examination, Munshi Malik Dad, Patwari disclosed that part of the land out of Survey No. 1938 was in possession of accused persons. The defence failed to enquire from the witness the particulars including definite area number of fields and particular site in possession of accused persons. No copy of Khasra Girdawari of such land was even brought on record. According to key‑note No.13, the field on the southern side of place of occurrence was found in possession of Sher., father of Muhammad Azam, accused, but this part of the land, according to the key‑notes and testimony of Patwari, was not part of the land shown in possession of Noor Elahi deceased. The case of prosecution is that Noor Elahi was in possession of land measuring 10 Kanals out of Survey. No. 1938‑min. This area was shown in different fields entered in key‑notes Nos. 8. 9, 10 and 12. The area of Survey No. 1938‑min claimed in possession of Noor Elahi is apparently 10 Kanals, whereas the area shown under key‑notes No. 8, 9, 10 and 12, obviously, exceeds 10 Kanals. This suggests that the Patwari was unable to give proper measurement of the land. Similarly, he created confusion about measurement and exact area of the land, in his evidence. It appears this was done as a concession to defence. The oral testimony of Patwari is not helpful and no definite reliance can be made on it for the purpose of determination of question of possession of land. Muhammad Afzal Khan, S.H.O. who visited the spot and got the site plan prepared under his supervision, was also unable to explain the relevant area of different fields. However, he made it clear that the place of occurrence was in possession of Noor Elahi, deceased.

5. A perusal of the evidence leads to the conclusion that the land where the incident took place, being Shamilat‑e‑Deh, was reclaimed by Noor Elahi. This is quite clear from entries in the record‑of‑rights. As a matter of fact Rehmat Khan and others, who are collaterals of Noor Elahi, were adamant to ‑occupy the land of their share, which led the parties to an ultimate quarrel resulting in death of Noor Elahi. It is also clear from the evidence that the land in question was closed by hedge fixed by Noor Elahi. Rehmat Khan and his associates being dissatisfied with the closure of this land, shifted part of the hedge to cover that part as their share to maintain their possession.

6. On settling the question of possession of land, the place of occurrence, next we examine the actual incident. Chaudhry Muhammad Taj, the learned counsel for defence, expostulated that prosecution was aggressor as on finding Rehmat Khan ploughing the land already in his possession, Noor Elahi and Fazal Hussain went home and came back fully armed to attack Rehmat Khan. They arrived on the scene alongwith the injured eye‑witnesses. According to defence. Rehmat Khan was alone at that time and it was only when he was attacked by complainant party that other accused persons arrived on the scene to save him from assault. The learned counsel contended that prosecution has filed to bring home the guilt to accused Next, it was argued that all eye‑witnesses are inter se related, as such, they are interested. Their testimony is to be rejected outrightly particularly in presence of suppression of material particulars of the incident, made by these witnesses. In this respect, reference was made to the injuries sustained by various accused at the hands of complainant party. He pleaded self‑defence and cited various authorities in support of his contention.

7. Fazal Hussain, Noor Alam, Fatimah Bibi, Muhammad Alam and Karam Elahi are admittedly closely related. Fazal Hussain is son, Fatimah Bibi is widow of Noor Elahi deceased whereas the other eye‑witnesses are his true brothers. Under the rule of evidence, testimony of close relations cannot be rejected outrightly simply by virtue of their relationship. Such evidence loses its value, of course, when it is found otherwise incredible and worthless. Relationship, inter alia, by itself is not a disqualification of a witness. Testimony of a related witness is tested on equal footing with the testimony of any other witness in the light of settled rules of evidence. It is believed or disbelieved by virtue of its own intrinsic value. Nevertheless, Courts as a safeguard and precaution, insist on independent corroboration of such evidence.

8. Presently, it is noticed that independent witnesses close their eyes to en incident to avoid going through gruesome process of investigation and trial. It is unfortunate that, in present day society, disinterested and independent witnesses have deliberately evolved a tendency of avoidance by concealing and suppressing direct evidence in their possession: This appears to be partly due to silly behaviour of police during investigation and partly due to procrastination in trial; going back of witnesses without recording their evidence and lastly the lengthy cross‑examination in a humiliating manner by opposite counsel. As a result of this tendency, it has become very rare to secure evidence of disinterested and independent witnesses even if a murder or other incident takes place in public places like markets, bazars and busy roads. In this view of the attitude of even civilised people, police has no alternative except to introduce relative witnesses to secure conviction of culprits. Be as it may, in present case, the eye‑witnesses, except Noor Alam, were injured in the incident Their presence on the scene is un-denied even to the defence. However, according to defence, these witnesses attacked Rehmat Khan in consequence of their premeditation to evict him forcibly from the land in question. It is noticed that all the eye‑witnesses have suppressed the injuries of the accused persons. It is admitted that, in counter‑case, the eye‑witnesses were arrested and recoveries of weapons of offence used in causing injuries to the accused persons, were made at their instance. A revolver was recovered from the possession of Fazal Hussain This suggests that initially the police registered cases against both parties and arrested them in view of the charges ascribed to each other Ultimately, it was concluded to drop the counter‑case and to challan the accused persons to face trial, of offences imputed to them. On this score, the testimony of Fazal Hussain is found prevaricative. In answer to a question in cross -examination, he denied his arrest and recovery of revolver, but in second thought, he admitted the same, Likewise, the eye‑witnesses denied their knowledge of the injuries of accused persons and stated that none of the accused was injured in the incident. It is clear from the attitude adopted by these witnesses that they deliberately suppressed some of the material facts which, in their opinion, lent support to defence. But suppression of these material particulars is not enough to reject their total testimony. That part of the testimony is to be accepted which finds corroboration from independent source.

9. Prosecution's case is that Rehmat Khan, with intention to grab the land of deceased, made a criminal trespass and to its consequence, killed Noor Elahi. It is alleged that on arrival of Noor Elahi and Fazal Hussain, Noor Elahi asked him to stop from ploughing the land Rehmat Khan stopped doing so and let off his bullocks but started a row with Noor Elahi. The altercation developed into a quarrel, on which Rehmat Khan caused a hatchet blow, from its sharp‑edged side, on the head of Noor Elahi. On receiving the blow, Noor Elahi fell down and lost his conscience. Other accused appeared on scene and joined the fight by inflicting injuries to complainant party. Presence of Rehmat Khan in the land, the place of incident, prior to the arrival of Noor Elahi and F Fazal Hussain (from the trend of defence in cross‑examination), appears to be admitted. Immediate cause of quarrel and its initial starting between Rehmat Khan and Noor Elahi is distinctly clear. The injured eye‑witnesses and other accused joined the fight at immediate subsequent moment. This part of prosecution story finds support from the testimony of Muhammad Ibrahim, P.W., who testified that there was altercation between Rehmat Khan and Noor Elahi over ploughing of land when Rehmat Khan inflicted spear blow on the head of Noor Elahi deceased. We have, therefore, no hesitation to believe that initially the quarrel started between Rehmat Khan and Noor Elahi which resulted into infliction of spear injury on the head of Noor Elahi. Our view finds support from the attending circumstances. It is accepted that distance between village Abadi and scene of occurrence is 200 to 300 yards. It is also disclosed that place of occurrence is quite visible from the village. This is testified by all prosecution witnesses and even defence does not dispute it. From this, it is safe to infer that originally fight started between Rehmat Khan and Noor Elahi deceased. Rehmat Khan, on having altercation with Noor Elahi, gave him a spear blow, from its sharp‑edged side, in that heat of passion. Family members of these old contenders were attracted by the quarrel and they also joined oblivious of its consequences. The liability of causing fatal blow to deceased is clearly[ proved. Rehmat Khan accused is found guilty of causing death of Noor' Elahi, beyond reasonable doubt. The relevant evidence of eye‑witnesses finds complete support from independent testimony of Muhammad Ibrahim, P.W. and medical evidence. In our opinion, Rehmat Khan was responsible for his independent liability of causing fatal injury to Noor Elahi deceased.

10. The allegation of forming unlawful assembly to accomplish common object by causing death of Noor Elahi and injuries to eye‑witnesses, is not supported by any independent source of evidence. Muhammad Ibrahim, P.W., who is not found related to either party, deposed that he was taking his cattle to Pabbi. He found Noor Elahi, Rehmat Khan, and Fazal Hussain having an altercation whereas the other accused persons were standing aside. Noor Elahi and Rehmat Khan were accusing each other by laying claim to the land in question. As a result of altercation, Rehmat Khan inflicted a hatchet blow on the head of Noor Elahi who fell down. Therefore, other accused persons joined the quarrel but at that occasion, he left the scene. In the F.I.R., Fazal Hussain disclosed that on arrival on the scene, Noor Elahi, his father, stopped Rehmat Khan from ploughing the land. There started an altercation when Sawar Khan and other accused persons also arrived on the scene. The relevant part of the F.I.R., coupled with the evidence of Muhammad Ibrahim, P.W., leads to an inference that the other accused persons arrived on scene only in consequence of altercation between Noor Elahi and Rehmat Khan. Karam Elahi, P.W. also hinted in his evidence that he was at home and was attracted by altercation between Noor Elahi and Rehmat Khan when he arrived at the place of fight. He stated that Rehmat Khan caused injury to Noor Elahi after arrival of the eye‑witness. It is reasonable to infer from the evidence of Noor Elahi, Muhammad Ibrahim and other eye‑witnesses that Rehmat Khan and Noor Elahi were engaged in altercation and meanwhile eye‑witnesses and other accused arrived on the scene. In view of this inference, it is just and safe to hold that the incident was not the result of premeditation and pre-concert of other accused persons. They were not partisan to the original incident. The allegation of forming unlawful assembly finds no corroboration from independent source. The case of other accused persons being distinguishable from the case of Rehmat Khan, they cannot be held responsible for the death caused by Rehmat Khan.

The other part of imputation is that rest of the injuries of deceased were caused by Sabir Hussain and Muhammad Azam. It is stated by the eye‑witnesses that soon after the infliction of fatal injury on Noor Elahi and his falling down there was a free fight and accused caused injuries indiscriminately. It is clear from the evidence that the parties were involved in a free fight and inflicted injuries to each other. In that situation it was not possible to pinpoint specific injury to particular accused. We are unable to believe that eye‑witnesses who were themselves fully involved in the fight, were able to carefully watch the causing of rest of the injuries of the deceased. The subsequent event of quarrel, in legal term, was a free fight between the parties. The allegation of offence of unlawful assembly is not found proved.

11. Next, it was argued the Rehmat Khan accused being a co‑sharer in possession of land in question, was justified to inflict fatal injury to Noor Elahi in defence of his property and person. There is no force in the contention. We have deeply appreciated the question of possession of land in the operative part of this order. In our estimation, Rehmat Khan was not found in possession of any part of the land where the occurrence took place. It is correct that Shera, father of Muhammad Azam co‑accused, was shown in possession of a field situated on the southern side of the place of occurrence but that by itself does not help to believe that Rehmat Khan was actually ploughing that part of the land when occurrence took place. It has come in evidence that Muhammad Azam accused, before joining the quarrel, was ploughing his own land but it does not lead further to hold that the land which Muhammad Azam was ploughing actually formed part of the land in dispute the stage of defence of property arises only when it is satisfied that the incident occurred in process of defence of property of the accused. Likewise, the argument relating to defence of person is devoid of force. It does not transpire from the evidence on record that Rehmat Khan was under an immediate apprehension of danger to his life and thereby was justified to take initiative in the manner of causing fatal blow to Noor Elahi. The evidence placed on record indicates that Rehmat Khan stopped ploughing the land and walked few steps towards Noor Elahi and started a row with him. During altercation, the accused inflicted a hatchet blow on the head of deceased. The defence was unable to bring forth any material to make us believe that Noor Elahi was armed at the moment or that he took any step sufficient for apprehension of danger to the life of accused. In absence of any overt act towards apprehension of danger to life, Rehmat Khan could not be justified to cause the fatal blow to deceased. The authorities cited in support of plea of defence of property and person, have no relevancy to the facts of present case. All the authorities cited by the learned counsel in support of his contention are clearly distinguishable from the leading features of the case in hand.

12. The scope of liability ascribed to accused persons other than Rehmat Khan, has been examined thoroughly. We have come to the conclusion that except Rehmat Khan, other accused persons joined the quarrel simultaneously with the eye‑witnesses as both parties were attracted by the abuses exchanged between Rehmat Khan and Noor Elahi. In that state of mind, both parties entered into free fight and inflicted injuries on each other. The offences attributed to other accused persons are not found proved beyond reasonable doubt. They are, therefore acquitted.

13. Rehmat Khan accused is found guilty of causing death of Noor Elahi by inflicting spear injury from its sharp‑edged side on left parietal region of skull. The size of the wound was 1 " x " x ". In opinion of doctor, death occurred on account of intracranial haemorrhage. The accused is liable to punishment in the light of the facts constituting the offence of causing culpable homicide. It is evident from the first information report, testimony of Fazal Hussain, P.W. and other eye witnesses, that on arrival of Noor Elahi on the scene, he asked Rehmat Khan to stop ploughing the land. Rehmat Khan stopped ploughing, let off his bullocks and went few steps towards deceased when an altercation took place between them. The conduct of Rehmat Khan, therefore, suggests that he did not insist on ploughing the land in question; rather, in compliance with the direction of deceased, stopped ploughing the land. Subsequently, there developed a row between the accused and deceased and it consumed enough time so much so that other eye‑witnesses and co‑accused arrived on the scene. This is so as according to testimony of Noor Alam, Muhammad Alam, Karam Elahi ands Fatimah Bibi, the fatal injury was caused by accused after their arrival on the scene. It appears from the state of attending circumstances that the fatal blow was caused during exchange of hot words, in heat of I passion. In other words, the fatal injury was not caused in consequence of premeditation and intention to kill. This inference finds support from the fact that despite Noor Elahi, on receiving the injury, fell down, Rehmat Khan declined to take advantage of the situation by repeating blows on deceased. Single blow caused by Rehmat Khan suggests that he had no intention to kill the victim. But at the same time, it is reasonable to believe that in view of the weapon of offence and the seat of injury, the vital part of body, Rehmat Khan accused had the knowledge that his act was likely to cause death of the victim. The total facts of the case as brought on record, take out the case of Rehmat Khan from the mischief of provisions of section 5 of the Islamic N Penal Laws Act. It is not covered by any other provision of the Islamic Penal Laws Act as it is clearly a case of culpable homicide not amounting to murder, punishable under second part of section 304 of ‑the Penal Code. The sentence provided for an offence falling under second part of section 304, Penal Code, is 10 years' rigorous imprisonment or fine or both. We, therefore, hold that a sentence of seven years' rigorous imprisonment and a fine in the sum of rupees five thousand, and on failure to pay the same, a further imprisonment for one year, under Part II of section 304, Penal Code, is sufficient to meet the ends of justice. Rehmat Khan is, therefore, held guilty of offence under Part II of section 304, Penal Code, and awarded the foregoing sentence. Rehmat Khan accused is shown 80 years old. At present he is in the lock‑up. Keeping in view the old age of the accused, it is deemed 10 expedient to give him the benefit of section 382 (B) of the Criminal Procedure Code. The jail authorities shall determine the period of his, detention by keeping in consideration the period spent by the accused in lock‑up during the trial. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased.

The reference is disposed of accordingly...

M.Y.H. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.